Prominent supporters of former president Donald Trump are using a new Colorado law to try to dismiss a defamation lawsuit over their false claims of election rigging.
The 2019 law allows a court to throw out a meritless defamation case if defendants can show they were exercising their constitutional right to free speech and to petition the government.
The defamation suit was filed by Eric Coomer, a former employee of Denver-based Dominion Voting Systems, against the Trump campaign, as well as a number of high-level surrogates and pro-Trump media outlets.
Coomer is the subject of conspiracy theories on the right that falsely accuse him of using his position to mastermind a high-tech plot to steal the 2020 election for President Joe Biden. He said he spent months living in hiding, tormented by threats and in fear for his and his family’s safety.
“This is a case where Defendants published serious and outrageous statements about a private citizen—and in so doing, destroyed his privacy, safety, and reputation,” Coomer’s attorneys said in a filing in response to the motions to dismiss.
“Defendants never had a shred of reliable proof that any of their defamatory statements about Dr. Coomer were true, and Defendants knew and should have known that these statements were baseless and false.”
But in their motions, attorneys for the defendants argue the election is a matter of public concern and their clients have the constitutional right to speak out on it.
“Antifa, public unrest and the hijacking of peaceful public protests by extreme right and extreme left groups, the 2020 Presidential Election, and American Election Security are all matters of immense public interest,” said a filing from conservative Douglas County activist Joe Oltmann.
Oltmann claimed on his podcast that he’d infiltrated a call with Denver-area Antifa members and heard a man identified as "Eric from Dominion” tell the group that he would make sure Trump didn't win the election.
“Whether the Plaintiff was on the September, 2020 call is ultimately immaterial,” the brief argues. “In order to prevail, (Coomer) must show that even if Mr. Oltmann’s report was false, it was made ‘with the knowledge that the statement was false or with reckless disregard of whether it was false or not.’”
On Wednesday and Thursday a Denver District Court judge will hear arguments on whether Coomer’s defamation lawsuits should move forward.
SLAPP law used in surprising way
The Defendants’ motions to dismiss the lawsuits are based on a new Colorado statute that aims to protect free speech and quickly get rid of meritless lawsuits filed purely to silence critics.
“What we had been seeing across Colorado and also in other parts of the country... were big companies that were threatening ordinary citizen activists when those citizen activists were speaking out against the company,” said former Democratic State Senator Mike Foote, one of the main sponsors of the legislation.
Even if a defamation case had no merit, Foote said the lawsuits often worked to intimidate people into silence, and chill protected speech. He said he was surprised to see the statute being used in this instance.
“The whole point is that it protects the weak against the strong,” he said. ”And for a strong and powerful entity to flip it around against the ordinary citizen seems to be a perversion of the reason why it was enacted initially.”
The anti-SLAPP Act — SLAPP stands for Strategic Lawsuits Against Public Participation — passed the legislature nearly unanimously two years ago. It allows the target of a defamation or libel suit to ask the case to be thrown before the lengthy and expensive discovery process begins.
First Amendment attorney Steve Zansberg said for Coomer’s defamation cases to succeed his side doesn’t just have to show that the statements made about him were false and hurt his reputation, but also that they were made maliciously.
Zansberg represents the Colorado Broadcaster’s Association as well as CPR News.
“I don't think there's going to be any serious dispute as to the truth (of the election rigging claim),” Zansberg said. “It's a false statement that is defamatory. It lowers the reputation both of Dr. Coomer and Dominion systems. And so the real fight is going to be over actual malice.”
Attorneys for Trump’s former lawyer, Rudy Giuliani, say Coomer failed to show “actual malice” even if Giuliani repeated Oltmann’s claims without investigating whether they were true.
“That a person failed to investigate before publishing does not evidence actual malice,” reads their filing.
Giuliani’s attorneys also said their client can’t be held responsible for comments made by other Trump defenders and that he did not conspire with anyone to defame Coomer.
“While Giuliani may be one of the most well-known names involved in this case, his Election Statements regarding Plaintiff were nothing more than a few sentences that merely repeated what many in the media were already reporting about Plaintiff and which a witness was willing to swear to under oath.”
Coomer dropped a defamation lawsuit against Newsmax after reaching a settlement with the cable network. The company issued a retraction and apology and said there is no evidence that Dominion Voting Systems or Coomer manipulated election results in 2020.
Coomer’s lawsuit names more than a dozen defendants, including the Trump campaign, Guiliani, lawyer Sidney Powell, Colorado-based conservative commentator Michelle Malkin, radio host Eric Metaxas, One America News Network and its White House correspondent Chanel Rion, and the Gateway Pundit and its editor James Hoft. The suit also names Oltmann, FEC United, a rightwing group he founded, and Shuffling Madness Media, a company the lawsuit says he owns.
Voting technology companies are also using billion-dollar defamation lawsuits to fight false claims that they were involved in stealing the 2020 election. Dominion has said the flood of disinformation about the election has hurt its bottom line and left employees fearful.
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